Schultz v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: KELLER; CLINTON; MEYERS
• Citation: Schultz v. State, 923 S.W.2d 1 (Tex. Crim. App. 1996)
• Decision Date: 17 April 1996
• Docket Number: No. 0864-94,0864-94
• Parties: Theresa Ellen SCHULTZ, Appellant, v. The STATE of Texas, Appellee.

Page 1

923 S.W.2d 1

Theresa Ellen SCHULTZ, Appellant, v. The STATE of Texas, Appellee.

No. 0864-94.

Court of Criminal Appeals of Texas En Banc.

April 17, 1996.

Mike Brown, Lubbock, for appellant.

Michael West, Assist. Dist. Atty., Lubbock, Robert A. Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge.

Appellant was charged with the offense of child abandonment under TEX.PEN.CODE ANN., Sec. 22.041(b). ¹ Evidence showed that appellant's nine year old daughter and her eleven year old nephew died in a fire after appellant left them alone for fifteen hours. In affirming appellant's conviction, the Court of Appeals held that the culpable mental state under Sec. 22.041(b) is "intentional" and that the mental state attaches to conduct rather than to circumstances surrounding conduct. Schultz v. State, 879 S.W.2d 377 (Tex.App.--Amarillo 1994). We granted review to determine the propriety of that determination. We will affirm.

Sec. 22.041 provides, in part:

(a) In this section, "abandon" means to leave a child in any place without providing reasonable and necessary care for the child, under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability.

(b) A person commits an offense if, having custody, care, or control of a child younger than 15 years, he intentionally abandons the child in any place under circumstances that expose the child to an unreasonable risk of harm.

The jury charge in this case tracked the language of the statute. Appellant objected at trial, arguing that the charge erroneously authorized a conviction without requiring any culpable mental state as to the circumstances surrounding the conduct of abandonment.

Essentially, appellant's argument is that the jury charge was erroneous because abandoning a child is not a criminal offense unless the person leaving the child is aware of the risk in doing so and consciously disregards that risk. She reaches this conclusion by means of the following steps: Appellant first claims that "intentionally" in Sec. 22.041 does not prescribe a mental state, but is vestigial language that merely establishes a requirement that conduct be voluntary. She then refers to Sec. 6.02, which states that if the definition of a statute does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental elements. Since, according to appellant, Sec. 22.041 does not prescribe a mental state, the statute falls under the purview of Sec. 6.02, and a mental state of at least recklessness is implied. After determining that a mental state of recklessness attaches to Sec. 22.041, appellant analogizes Sec. 22.041 to similar statutes and to cases involving the result-oriented offense of injury to a child. She concludes her claim by arguing that, comparable to injury to a child, child abandonment is a circumstance-dependant offense that requires a culpable mental state that relates to the nature of the circumstances surrounding the charged conduct, rather than to the conduct itself.

In its opinion, the Court of Appeals focused on the text of the statute and found that the legislative intent behind the statute was clear. Id. at 380. They looked at the fact that the Legislature placed "intentionally" directly before "abandons," and concluded that the intent in so doing was to require that the prescribed mental state attach to the act of abandonment itself. Id. They held, in other words, that the statute requires that the act of abandonment be intentional, but does not require an additional mental state regarding the circumstances of the offense. Id.

In construing a statute, our duty is to attempt to effectuate the intent of the Legislature in enacting the statute. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). If the meaning of the statutory text, when read using established canons of construction relating to such text, should have been plain to the legislators who voted on it, we ordinarily give effect to that plain meaning. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). It is only when a statute is ambiguous or would lead to absurd results that a court may resort to extratextual factors such as legislative history. Id. at 785.

We agree with the Court of Appeals that, according to the plain language of Sec. 22.041, the fact that "intentionally" immediately precedes "abandons" means that the prescribed mental state is connected with the act of abandonment itself. Had the Legislature intended to require that the actor be aware of the risk of harm, it would have been a simple matter to have included language to that effect. For example, Sec. 22.10, "Leaving a Child in a Vehicle," explicitly requires a mens rea of 'knowing' or 'intentional' for conduct (leaving a child in a vehicle) and also explicitly requires a mens rea of 'knowing' for the circumstances (knowing that the child is younger than seven years old and not attended by a person fourteen or older.) ²

Moreover, we presume that "the entire statute is intended to be effective." TEX.GOV'T CODE, SEC. 311.021(2). SUBSECTION (A)³ of Sec. 22.041 defines "abandon," in part, as leaving a child "under circumstances under which no reasonable, similarly situated adult would leave a child of that age and ability." Because no reasonable similarly situated adult would knowingly leave a child under circumstances posing an unreasonable risk of harm, this clause in the definition of "abandon" in subsection (a) would be rendered meaningless by attaching a mental state to the risk of harm clause in subsection (b). Under the appellant's interpretation of the child abandonment statute, the meaning of the statute would not change if the word "abandons" and its special definition in subsection (a) were replaced with the word "leaves." The text of Sec. 22.041, therefore, persuades us that the first premise of appellant's argument must fail, and with it, the conclusions that rest upon that primary hypothesis. ⁴

One argument remains to be considered. Appellant contends that it would be contrary to the common law tradition to penalize one who acts without being conscious of an unreasonable risk. In making this argument, appellant claims that child abandonment is a circumstance-dependant offense, and analogizes it to result-oriented offenses such as injury to a child. She refers us to the line of cases including Beggs, Alvarado, and Haggins v. State, 785 S.W.2d 827 (Tex.Crim.App.1990). Result-oriented offenses require specific mental culpability beyond intentional conduct. Therefore, appellant argues, circumstance-dependant offenses also require specific mental culpability beyond intentional conduct. By analogizing her case to Beggs appellant asks us, in effect, to consider whether it is right to punish one for an act that is done without awareness of the risk associated with the act.

In Beggs this Court held that in a trial for injury to a child, the jury must be instructed that they cannot find the defendant guilty unless they find that he intended the result of his conduct. In other words, injuring a child is not a criminal act unless the actor intended to cause the injury.

Beggs was a prosecution for injury to a child under Sec. 22.04(a). In that case, the defendant was charged with injuring her granddaughter by placing her in a tub of hot bathwater. The defendant claimed that she did not know the water was hot enough to injure the child, as the child's mother had drawn the bath. Because the jury instructions allowed the jury to convict the defendant if they found only that she intended to place the child in the hot water, regardless of whether she intended the resulting injury, the conviction was reversed. This Court determined that the focus of Sec. 22.04 was the harm which the statute sought to prevent, rather than the nature of the suspect's conduct. That is, the Legislature did not intend to criminalize behavior that was, in itself, innocent, e.g., placing a baby in the bath.

There are two significant differences between injury to a child under Sec. 22.04(a) and child abandonment under Sec. 22.041. One is that conduct that is criminalized under Sec. 22.041 is per se dangerous. The statute makes this so by defining "abandon" as leaving a child under circumstances under which no reasonable, similarly situated adult would do so, that is, in dangerous circumstances. The problem that arose in Beggs--the possibility of convicting a person for entirely innocuous behavior--does not arise in prosecutions under Sec. 22.041. ⁵

The other fundamental distinction between Sec. 22.04(a) and Sec. 22.041 is that the latter applies only to those who have custody, care, or control of the child victim. Sec. 22.041 imposes a duty upon those responsible for children to refrain from unreasonably subjecting the child to danger. There is no corollary duty under Sec. 22.04(a). Unlike Sec. 22.04(a), Sec. 22.041 can dispense with a requirement of awareness of danger because a person subject to Sec. 22.041 has already assumed the responsibility to act reasonably with regard to the child's safety. It is the neglect of this duty that is criminalized under Sec. 22.041(b). ⁶

The judgment is affirmed.

MALONEY and MANSFIELD, JJ., concur with note: I concur in the judgment of the Court, believing that proof of intentional abandonment as defined by the statute, without requiring proof of an additional mens rea, is all that is necessary to sustain a conviction under Tex.Penal Code Ann. § 22.041(b).

CLINTON, Judge, dissenting.

Joining Judge Meyers in his adherence to analytical treatment in my concurring opinion in Lugo-Lugo v. State, 650 S.W.2d 72, at 85 ff (Tex.Cr.App.1983), of principles of criminal responsibility provided in Chapter Six of the "new" Penal Code, I write first to "set the stage," secondly to address...